New LPA process increases risk of fraud and abuse

Published: 29/09/2015

A new Lasting Power of Attorney (LPA) process was introduced in July of this year by the Office of the Public Guardian (OPG). The reason why this new process was introduced was to increase the take up of LPAs which are very low – only about 15% of people over the age of 75 have an LPA, by widening access.

An LPA is a valuable form of protection for older people. Without an LPA in place should your health suddenly deteriorate – for example with the onset of dementia or if you suffered a serious accident and you lost the capacity to make decisions and manage your affairs then no one, not even your spouse would have the automatic right to step in and take charge of your finances.

The OPG changes have further enabled people to make an LPA themselves without using a lawyer. However this has given rise to errors in completing the forms for an LPA and perhaps worse still other customer safeguards have been relaxed. Previously, two independent third parties called ‘Certificate Providers’ were required if no person was to be notified of your decision to make an LPA. The Certificate Providers role was to sign to say that the person making the LPA (the donor) , understands what the LPA is and what it will do and hasn’t been pressured into signing the form to make an LPA. It also stated the capacity in which the Certificate Provider was providing the Certificate (personally, as they have known the Donor for more than two years or professionally). Within the new forms this has been removed and so there is now no means to check whether this third party is actually qualified to sign the form to give that assurance.

Formerly, if you chose just one Certificate Provider then you had to notify at least one other person you were making the LPA. The person notified had the opportunity to object to you making the LPA, if for example they had any concerns about your capacity or free choice to make an LPA.

The new process has removed the need to notify third parties that an LPA has been registered, rather it is optional whether a donor notifies any person or not and so it could be argued that another layer of protection against fraud and coercion has been removed.

Head of Wills and Probate, Linda Cummins comments:

“Any measure which increases the numbers of older people who make an LPA has got to be considered carefully as an LPA is a valuable source of protection for older people and it’s concerning that so few of them make an LPA. However as Lasting Powers of Attorney can be complex and sometimes older people can be vulnerable when they make an LPA it makes sense to get legal advice and indeed lawyers can also be instrumental in ensuring that the right safeguards are in place.”